Medical cannabis caregiver and licensed producer initiate legal battle for adequate supply

(Albuquerque) – Nicole Sena, a medical cannabis caregiver to her infant daughter with a rare form of epilepsy, and New Mexico Top Organics-Ultra Health Inc., filed a complaint against the New Mexico Department of Health (NMDOH) on Tuesday on the basis that the Medical Cannabis Program’s 450 plant count is causing direct and immediate harm.

Due to the restrictive plant count, producers are unable to supply Sena with medicine her daughter desperately needs. The lawsuit addresses a long standing complaint by patients for the lack of available medicine. The parties believe court intervention is needed to ensure the NMDOH meets its statutory obligation.

The Medical Cannabis Program has been recently criticized for delays in processing patient cards in a timely manner as required by law. While this legal challenge relates specifically to the issue of adequate supply, it also reflects the exponential growth of the program and NMDOH’s mishandling of the program.

“State programs need rules to operate fairly, and the rules should not be arbitrary. Regulations should be consistent with statute, reflect the reality of patient specific needs, program growth and be supported by a credible assessment of supply and demand,” said Duke Rodriguez, CEO and President of Ultra Health®. “New Mexico has the benefit of utilizing experience from established programs to come up with a sustainable model to improve public health for the 30,000 New Mexicans who depend on medical cannabis.”

Since the program’s inception in 2007, the number of patients has grown from six to 27,908 as of July 31, 2016. Plant count was set at 95 plants in 2009, and has only been raised twice to 150 plants in 2010, and finally to 450 plants in 2015.

NMDOH has a long history of dispute with medical cannabis patients, producers and advocates in the implementation of the program:

The Lynn and Erin Compassionate Use Act became law on July 1, 2007, which included specific language to ensure an adequate supply of medicine. In July 2007 the first six of 12 applicants for medical cannabis patient status were approved. New law required rules to be implemented no later than October 1, 2007.

Rules were finally released from NMDOH in January 2009 after a two-year delay allowing a maximum of 95 plants per producer. Advocates argued the plant count would not be sufficient to meet current or future patient demand. There were 207 registered medical cannabis patients at the time.

By August 2009, the program had more than doubled with 540 patients. NMDOH approved one producer out of 21 applications, who was only allowed to cultivate 95 plants. NMDOH Secretary acknowledged complaints of the availability of medicine and would consider additional producers.

The following year in July 2010, the number of patients quadrupled to 2,000, and 11 producers experienced severe shortages of medicine. Producers argued they needed five times the plants allowed at the time.

And in December 2010, NMDOH raised the plant count from 95 to 150 plants and there were about 3,000 patients in the program.

Nearly two years later in July 2012, patients continued to suffer from lack of available medicine. The program was found to be operating at a 68 percent shortage in grams of medicine available to patients. There were 8,059 patients as of October 2012.

In October 2013, a NMDOH conducted survey found the 23 producers were growing only 20 percent of patient demand. Forty-six percent of patients surveyed listed they were unable to obtain medical cannabis because producers were out of medicine. Ninety-eight percent said they benefitted from the program.

The following year, then NMDOH Secretary states, “We now have a plan to meet current and future patient needs,” and will consider new producers and an increase in plant count.

In April 2015, NMDOH raises the plant count from 150 to 450 plants. There were nearly 13,000 patients at this time.

On August 1, 2016, 35 producers re-licensed for an industry total of 13,800 plants, averaging 394 plants per producer, until July 31, 2017. The current plant per patient ratio is one half plant per patient, compared to six plants per medical cannabis patient in Colorado. There are 27,908 patients in the program as of July 31, 2016, and the plant per patient ratio will continue to decline until restrictions are lifted.

“If adequate supply is the question, adequate information is the answer,” Rodriguez said. “Over the course of the program, plenty of data was available to forecast patient needs and demand. This problem needs to be addressed to avoid an imminent public health crisis.”